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Steering Committee On Justice Efficiencies And
Access To The Justice System
[1]

1. Introduction

1.1

The rights of the accused[3] are
best protected and the criminal justice system functions most effectively
and efficiently when the accused is represented by counsel. However,
self-represented accused (SRA) are increasingly coming before the courts.
Some SRAs have counsel early in the process but because of poor interpersonal
skills (e.g. as a result of mental or emotional problems) are no longer
represented.[4] The
purpose of this report is to recommend ways in which the criminal justice
system can best address the challenges posed by SRAs.

1.2

Many accused do not retain
counsel because of a lack of financial means. When these accused are
facing significant consequences in the event of conviction, it is important
that they have access to a legal aid plan resourced in accordance with
the government’s fiscal capacity and priorities. It is also important
that law societies continue to promote pro bono work. Some
accused choose not to be represented and this is their right. It is
important that these accused make an informed choice.

1.3

The access to justice of an accused should not
be limited based on the fact that the accused is self-represented. The
criminal justice system must continue to adapt to improve its
efficiency in cases involving SRA and to facilitate their access
to justice.

1.4

Responsibility for facilitating
the access to justice of SRAs and improving the efficiency of cases
involving SRAs is shared by all criminal justice system participants.

2. Pre-Trial Procedures Involving the Self-Represented Accused

2.1

The judge[5] before
whom a SRA appears should explain to the SRA how important it is to
be represented by counsel. The judge should ask the accused why he
is unrepresented. If the SRA wants to be represented, the trial judge
should find out if there is any reasonable thing that could be done
to assist the accused in getting representation. The SRA should be
told that it is his responsibility to retain counsel or an agent and
the proceedings will not be unduly delayed by a failure on the part
of the accused to exercise due diligence.

2.2

The judge or the clerk should inform the SRA
of how to contact the provincial or territorial legal aid programme
as well as, where applicable, the resources available in legal
assistance centres or on the Internet[6].
This could be done inter alia by giving the accused
an information pamphlet prepared, for example, by the legal aid
programme. [7]

2.3

Brief standardized legal information
remarks should be prepared for the judge to make to the SRA at different
stages of the trial process (e.g. see the excellent work of the Committee
on the Self-represented Accused in the context of the Access to
Justice Initiative in Saskatchewan.)[8]

3. The Assignment
of a Prosecutor

3.1

Ideally, a prosecutor should
be assigned to every SRA file. In many jurisdictions this will not
be possible. The Steering Committee recommends that, where possible,
a prosecutor be assigned to any SRA file anticipated to take longer
than one day, in accordance with so-called “vertical prosecution” procedures
(file ownership).

3.2

The contact information of this prosecutor or
of the person designated by the prosecutor[9] should
be given to the SRA to facilitate communication when necessary. However,
this communication may be subject to security measures where the circumstances
warrant.

4. Challenges regarding
evidentiary disclosure

4.1

The SRA has the same right
to disclosure of the evidence as an accused who is represented by counsel.[10]

4.2

The Committee acknowledges that providing disclosure
to the SRA may pose special challenges. [11]

4.3

In determining whether a copy of all or part
of the disclosure materials should be given to an SRA and/or
whether terms and conditions should accompany the SRA’s
possession of, or access to the disclosure information[12],
consideration should be given to whether such measures are necessary
in the circumstances, including consideration of the need to
protect the security and right to privacy of the witnesses and
victims or the integrity of the evidence.

4.4

In determining whether disclosure information
should be provided through electronic means the prosecutor should
give consideration to the skills and resources required of the
SRA to access the disclosure information.

4.5

The prosecutor should inform the SRA of the permitted
uses of the disclosure as well as the limits on its use.[13]

5. Communications
between the prosecutor and the SRA

5.1

Settlement discussions between the
prosecution and defence are a crucial part of all criminal proceedings.
The vast majority of cases do not proceed to trial because of settlement
resolutions. Settlement discussions often benefit the accused and result
in the prosecution seeking a lower sentence in return for a guilty
plea. If settlement discussions do not result in a case resolution,
trial efficiencies are often gained when the parties have an opportunity
to discuss the case in order to, inter alia, attempt to better
define the issues and agree on admissions. These discussions should
take place even where the accused is not represented. It is recommended
that national guidelines be developed to govern settlement discussions
involving SRAs.

5.2

The prosecutor and the SRA are acting within
an adversarial system and it may be necessary to take measures
to protect the interests of the parties. It is strongly recommended
that duty counselor counsel appointed in a pro bono program
assist the accused[14] for
the purposes of these communications.[15] Among
other things, this participation will help to:

Facilitate discussions about possible admissions
and issues, without potentially compromising the accused’s
right to silence;

Discuss, if necessary, the means of disclosure
of the evidence (For example: What will be the effect, where applicable,
of electronic disclosure of the evidence? Is it necessary
to control the access of the accused to the evidence and, if so,
how will this access be supervised?)

If the accused is planning a guilty plea, ensure
that the plea is informed and that the accused understands its
scope and consequences.

6. Judicial Pre-Trial Case Management Conference

6.1

The courts in most jurisdictions hold judicial
pre-trial case management conferences in complex or lengthy matters,
where the parties request a conference, or where a judge is of
the view that a conference would be in the interests of the administration
of justice.[17] It
is recommended that these criteria apply in cases involving SRAs
and the conference takes place after the prosecutor and the SRA
have had an opportunity to communicate with one another.

6.2

In the absence of exceptional circumstances,
the judge who holds the case management conference should be
different from the judge who presides over the trial.

6.3

It is recommended that the management conference
be held in open court and that these discussions be “on
the record”.

6.4

The Committee strongly recommends that duty counselor
counsel appointed in a pro bono program assist the accused
for the purposes of these communications.[18]

6.5

The case management judge discusses inter
alia with the parties:

Issues and admissions (including a statement of
the facts admitted by the parties). If need be, the judge notes
this information in the court’s record;

Issues relating to disclosure of the evidence,
including its content, the means of disclosure, the schedule and
the supervision of the access of the accused, if need be;

Expert evidence, where applicable; and

The anticipated duration of the proceedings and
the process for summoning witnesses.

7. Trial Procedures
Involving the Self-Represented Accused

7.1

There are cases that cannot proceed to trial
with an SRA without unfairness.[19] If
the trial judge is satisfied that the case before him is not
such a case, it is important that the trial judge take
the following steps[20] in
trials involving a SRA:

Provide the SRA with as much information as is
necessary for a fair trial, recognizing the difference between
explaining procedural choices available to the accused and advising
as to what decision to make.

Explain the charges and what the prosecution is
required to prove as well as the applicable burden of proof.

Explain that the accused has the right to remain
silent and will have the opportunity, but is not obliged, to present
evidence after the prosecution’s case.

Explain briefly the mechanics of the trial. This
includes, for example, the right of each side to call witnesses,
introduce documentary evidence, object to evidence adduced, the
choice to testify or not, and that if the persons chooses to testify
they will be cross-examined, and the right to make submissions
at the appropriate junctures during the trial.

The same should be done if a voir dire is
held. And if one is held, the function of a voir dire should
be explained.

Ask if the SRA needs pen and paper to take notes
during the trial.

Explain the role of the judge vis-à-vis
the SRA – to ensure the SRA has a fair trial - and that the
judge can offer some guidance regarding the procedures of the trial,
but that the judge cannot defend the interests of the SRA by offering
advice on the appropriate steps to take.

Ask if the SRA has read the legal information pamphlet
provided to SRAs.

Ask if the SRA has any questions about the pamphlet
or the information the judge has provided. Tell the SRA to ask
if during the trial there is something that they do not understand.

Make an order for the exclusion of witnesses.

The Steering Committee on Justice Efficiencies and Access to Justice
June 2010

[4] With
proper awareness and training, counsel can minimize the impact
of many of these behaviours. Consequently, we suggest that law
societies and professional organizations develop practical advice
to pro-actively address some these issues to help maintain the
solicitor/client relationship with difficult clients.

[5] In
this text, “judge” refers to a judicial officer any
may refer inter alia to the justice of the peace, the
provincial court judge or the superior court judge, as the case
may be.

[7] There
is an example of such an initiative in the General Guidelines
on the Conduct of a Criminal Jury Trial for Parties Representing
Themselves of the Supreme Court of the Northwest Territories.
(Schedule B)

[8] The
remarks of the judge could inter alia explain the different
procedural choices offered to the accused as well as the most
significant stages of the judicial process.

[9] Administrations
may wish to consider administrative measures to protect Crown
counsel, the accused and their respective interests.

[10] The
policies and guidelines of the Public Prosecutions Division of
Newfoundland and Labrador provide: “An unrepresented accused
is entitled to the same disclosure as a represented accused. However,
the precise means by which disclosure is provided to an unrepresented
accused is left to the discretion of the Crown Attorney based
on the facts of the case.”

[11] Instructions
to prosecutors in various jurisdictions call for specialized
access to disclosure documents for self-represented accused.

Alberta’s Prosecution Guideline on Disclosure references “controlled
and supervised, yet adequate and private” access to disclosure
materials in circumstances where the safety, security or privacy
of individuals may be at issue if the self-represented accused
has unfettered access to documents and the ability to disseminate
them freely.

Alberta also has a specific Practice Memorandum on Disclosure
of Material Which Constitutes the Offence Itself, which
reinforces the need for controlled disclosure.

British Columbia has several Practice Bulletins on disclosure
and each makes a reference to access for self-represented accused:

Practice Bulletin Disclosure of Criminal
Records Information of Crown Witnesses (seek
court order re restrictions to access but only after consulting
with Administrative or Deputy Crown Attorney);

Practice Bulletin on CORNET Client History
Reports (not to be given to SRAs, instead, Crown
may provide the information in a different format or have
probation officer go over the report with accused);

[12] For
example, the Practice Bulletin dated November 18, 2005,
from the Criminal Division of the Department of Justice of British
Columbia states regarding controlled access of the unrepresented
accused to evidentiary disclosure: “In circumstances involving
an unrepresented accused], disclosure can still be controlled. Crown
Counsel can, for instance, arrange for disclosure to occur in a
controlled setting such as arranging for videotapes or other material
to be viewed in the Crown’s offices or, preferably, at
the local RCMP or city police detachment.”

[13] The
policies and guidelines of the Public Prosecutions Division of
Newfoundland and Labrador provide: “Counsel should consider
where disclosure is made to an unrepresented accused, the inclusion
of a written explanation of the appropriate uses and limits upon
the use of disclosure material.”

[14] It
is recognized that if an SRA has been unable or unwilling to
previously retain counsel, it will be challenging for duty counsel
to become familiar with the file and receive instructions.

[15] In
this country, there are examples of SRA assistance services offered
by counsel working “pro bono”. For example,
through the cooperation of the defence bar, the Criminal Lawyers
Association and Legal Aid Ontario, the Ontario Court of Appeal
has developed a duty counsel program for self-represented inmate
appeals. According to information provided by the Court,
counsel are paid for their expenses but otherwise act pro bono.
Counsel will, inter alia, review the file and assist
the appellant to make argument or obtain additional material
where necessary.

[16] Prosecutors’ guidelines
in various jurisdictions contain general cautions about the potential
ethical issues in dealing with self-represented accused. Some jurisdictions
caution that a third person should be present for resolution discussions
with self-reps and that the Crown should make clear notes to file
following any such meeting. For example, British Columbia’s “Crown
Counsel Policy Manual” provides, regarding the unassisted
accused: “In general, Crown Counsel should not initiate negotiations
with an unrepresented accused (this does not include providing
an Initial Sentencing Position document to the accused). Crown
counsel should encourage the accused to seek the advice of counsel
to assist in any resolution discussions. If the accused
declines to seek the advice of counsel and wishes to undertake
resolution discussions, where practicable Crown counsel should
arrange for a third person to be present during the discussions
or conduct the discussions in writing.”

The guidelines for counsel in Newfoundland and Labrador provide: “In
general, Crown Attorneys should not initiate negotiations with
an unrepresented accused”.

In the Northwest Territories, pre-hearing conferences are avoided
when the accused is not represented,

[17] The
rules of practice of the Court of Appeal of Québec,
for example, already provide for such a conference, convened ex
officio or on request of one of the parties (section 64).

[18] In
this country, there are examples of SRA assistance services
offered by counsel working “pro bono”. For
example, through the cooperation of the defence bar, the Criminal
Lawyers Association and Legal Aid Ontario, the Ontario Court
of Appeal has developed a duty counsel program for self-represented
inmate appeals. According to information provided by
the Court, counsel are paid for their expenses but otherwise
act pro bono.
Counsel will, inter alia, review the file and ass+ist
the appellant to make argument or obtain additional material
where necessary.